The real constitutional issue can be seen in the question of what the queen thought about Abu Hamza, what she thought should be done, and what was able to be done if sticking to the correct process in a liberal democracy. And much of this hangs on assumptions about what constitutes terrorism, what was actually going on at Finsbury Park mosque, and also on assumptions about what the state did or didn’t do. On the latter point those opposed to the approach used would have said it was all in the name of political correctness (gone mad), in which he was allowed to carry on being a terrorist because we didn’t want to offend Muslims.
So, to what the Queen apparently said:
‘Frank Gardner said the monarch personally told him she was aghast that Abu Hamza could not be arrested during the period when he regularly aired vehemently anti-British views as imam of Finsbury Park mosque in north London.’
Now I feel it’s important to point out that ‘vehemently anti-British views’ were and remain legal.
‘Gardner said of Abu Hamza's former activities that there was a sense MI5 had been too slow to realise how dangerous he was in radicalising other people. Gardner continued: "Actually, I can tell you that the Queen was pretty upset that there was no way to arrest him. She couldn't understand – surely there had been some law that he had broken? In the end, sure enough, there was. He was eventually convicted and sentenced for seven years for soliciting murder and racial hatred." ’
And this is the point. Abu Hamza is written up as a convicted terrorist, but in reality 10 of his 11 convictions are not for terrorism, with the other a conviction for possessing documents. This is because extremists like him often try to stay within the law, and this is why many of the new terror offences were created. Radicalisation is ill-defined and it’s hard to prove incitement to hatred or murder, unless there are specific perpetrators and victims being incited. This is why standing on a street corner and saying ‘down with the West’, or ‘British Soldiers Go to Hell’ (an al-Muhajiroun slogan), poppy burning and so on doesn’t necessarily break laws.
It is true that the security services let him carry on with inflammatory sermons when they thought that the only jihadist actions that would be inspired were overseas. Apparently the security services told him:
"You have freedom of speech. You don't have anything to worry about as long as we don't see blood on the streets."
Furthermore, this kind of speech wouldn’t have been illegal until 2000 anyway.
And it’s in 2000 where the story gets interesting. The new Terrorism Act, the first of many, increased the range of actions that could be prosecuted. After 9/11 there was obviously a new fear that Islamist terrorists might attack in the UK, as opposed to elsewhere. It only took a few months from then for Abu Hamza to be suspended from his job and then kicked out of the mosque. He then spent just over a year preaching on the street outside Finsbury Park mosque, when he was arrested. He’s been inside ever since.
So, regardless of what the Queen or anyone else thought about the possibility of locking him up for just being anti-British, it looks like the security services did the right thing. When he wasn’t breaking the law they watched him, and used him as an informant: ‘MI5 saw the mosque as a "honeypot", and were prepared to let Hamza operate and monitor which extremists came, and also collect Hamza's information.’. Yes, he may have got people to pledge allegiance to Bin Laden, but translating that to a terrorist conviction would be difficult. When it was felt that his actions could lead to harm, they looked to see what they could arrest him for. This isn’t a narrative that fits with the ‘government let him do what he wanted so as not to upset Muslims’ argument. That argument doesn’t stack up anyhow: wars against Iraq, Afghanistan, changing lots of laws, outlawing Islamist groups, accusing the Muslim Council of Britain of not helping… none of this looks like the acts of a government afraid of upsetting Muslims.
If there was evidence that groups in Finsbury Park mosque or Abu Hamza and friends were actively plotting terrorist attacks in the UK then I’ve absolutely no doubt that the security services would have stepped in. The problem we have in the UK now is that people believe that Abu Hamza was plotting, they believe that terrorists are everywhere, and that they are being allowed to go about their business unimpeded.
Amusingly, the below-the-line discussion of the case showed how some people believe in the truth of some things that never happened, or have poor memories of when they did. One poster suggested that Abu Hamza incited murder on a weekly basis while the police did nothing except prevent ‘EDL members from attacking him’. Given that the EDL wasn’t formed until 5 years after his arrest, the poster is either getting the EDL and the National Front mixed up, or thinks that Abu Hamza was allowed to do his street preaching for far longer than is true.
The best, though, was the poster who got off topic and mentioned Anjem Choudary and al-Muhajiroun. The argument was sound: if someone breaks the law then prosecute them, and the media shouldn’t put the minority extremists on TV just to cause controversy. But as part of this argument he/she asked: ‘his followers went to Wootton Bassett to protest, how many of them were there? Not [more] than a few hundred.’
But the Wootton Bassett protest never happened. It was talked about, but it did not occur. We are in such thrall to the fear of extremism that there is no need for actual extremist acts. Just rumours that they might occur is enough to make us angry.
It’s argued that terrorists win when people change their ways of life in fear of terrorism. Implicit in the Queen's question was the idea that we should be able to lock up people who are vocally anti-British, whether or not that is against the law. Laws have been changed to give us the most extensive anti-terrorism legislation in the world, some of which has been overturned as it did not have the necessary checks and balances. Public opinion (including the Queen) sometimes seems to suggest that we need to suspend the rule of law: that's the last thing we need.